Date: 20060314
Docket: IMM-1767-05
Citation: 2006 FC 326
Ottawa, Ontario, March 14, 2006
PRESENT: The Honourable Mr. Justice John A. O'Keefe
BETWEEN:
LIDIA ORELLANA DELCID
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O'KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision by an immigration officer, dated February 4, 2005, which refused to grant the applicant an exemption on humanitarian and compassionate (H & C) grounds to permit inland processing of her permanent residence application.
[2] The applicant seeks an order quashing the immigration officer's decision and remitting the matter for re-determination by a different immigration officer.
Background
[3] Lidia Orellana Del Cid (the applicant), a citizen of Guatemala, came to Canada in October 1994 on a visitor visa. She left behind her husband and their two young daughters in Guatemala. Her intention was to be sponsored by her father, a landed immigrant in Canada, and then to bring the rest of her family to Canada. The applicant's visa expired in October 1995 but she has stayed in Canada continuously since her arrival.
[4] While living in Canada, the applicant worked as a cleaner and babysitter. She sent money back to Guatemala to pay for her daughters' schooling. She eventually separated from her Guatemalan husband and began living with her present husband, Mr. Chamale, who is a Canadian citizen. The applicant had two daughters in Canada with Mr. Chamale, born October 1, 1999 and March 7, 2001. In the midst of this, the applicant's Guatemalan husband died in a car accident in September 2000. The applicant married Mr. Chamale in May 2003.
[5] The applicant currently stays at home to care for her two Canadian-born children while her husband works at a restaurant as a cook. The family lives in Mr. Chamale's brother's home along with Mr. Chamale's mother and grandfather.
[6] The key events in the applicant's immigration file are as follows. The applicant made an H & C application in 1997, which was refused in January 1998. She then made a refugee claim, which was denied in April 2000.
[7] In February 2001, an immigration warrant for her arrest was issued for her failure to leave Canada and confirm her departure. In November 2003, she was arrested by immigration officials and released on a cash bond.
[8] On December 1, 2003, the applicant made a second H & C application based on the interests of her family in Canada. The applicant also submitted a Pre-Removal Risk Assessment (PRRA) application, which resulted in a negative risk assessment dated September 24, 2004.
[9] On February 4, 2005, an immigration officer denied the applicant's H & C application. This is the judicial review of that decision.
Reasons for the Immigration Officer's Decision
[10] The immigration officer considered the applicant's immigration history and found that the applicant had demonstrated a lack of respect and regard for Canadian immigration laws. Moreover, the immigration officer found that the applicant had provided insufficient evidence that her actions were justified and due to reasons beyond her control.
[11] The immigration officer noted that the applicant had two daughters in Canada, aged 3 and 5, as well as two daughters in Guatemala, aged 12 and 13. With respect to the interests of her children, the immigration officer stated:
They now have two daughters, Thelma and Damaris. Their daughters are aged five and three, respectively. The applicant has a difficult choice ahead of her. She will either have to leave her children behind or take them with her. I will acknowledge that this will be a difficult decision for the applicant. I also acknowledge that the children may face difficult times in being away from either parent. I am not satisfied that their best interests will be jeopardized. They will have the love, care and support of the custodial parent. That parent can ensure that the children will be well cared for and offer any support that is necessary to get through any difficulties the child may face.
I cannot ignore the fact that the applicant built her new life during a time that she had no status in Canada. She remained in Canada long after the period authorized for her stay. She has created the situation in which she now finds herself. I further note that she has two other daughters remaining in Guatemala. Today, they are 12 and 13. When the applicant left Guatemala, they were two and three. They were no older than the Canadian born children are today; yet the applicant was able to leave them in Guatemala. I note that she has been separated from them for the past ten years. Undoubtedly the children in Guatemala are just as deserving of having the physical presence of their mother. I am not satisfied that she has demonstrated that the hardship faced by her Canadian born children would be any greater than the children who have been without their mother for the past ten years.
[12] The immigration officer also considered the applicant's degree of establishment in Canada. The immigration officer stated that the applicant "had no employment history, no upgrading or community involvement", and that the applicant had never been issued a work permit even though she was eligible to apply for one after submitting a refugee claim.
[13] With respect to the applicant's fear of returning to Guatemala, the immigration officer noted that the applicant's relatives were killed in Guatemala and that the applicant has bad memories of Guatemala. However, the immigration officer found that there was insufficient evidence that the applicant would be at risk if returned to Guatemala. The immigration officer was satisfied that the applicant had due process in this matter as the applicant had a negative PRRA and a negative refugee finding.
[14] The immigration officer refused the applicant's H & C application given that the applicant had not demonstrated that the requirement of applying for an immigrant visa outside of Canada constitutes unusual, undeserved or disproportionate hardship.
Issues
[15] The applicant submitted the following issues:
1. Was the decision of the immigration officer unreasonable as it failed to be alive, alert, and attentive to the best interests of the applicant's children?
2. Did the immigration officer err in failing to request and elicit additional information concerning the best interests of the applicant's children?
Applicant's Submissions
[16] The applicant submitted that the central issue in this application is whether the decision of the immigration officer was reasonable. The applicant submitted that the immigration officer made an unreasonable decision because she gave, at best, cursory attention to the interests of the applicant's Canadian children. The immigration officer made no inquiries into the standard of living in Guatemala and the impact that the change in standard of living may have on the children if the applicant were to take them to Guatemala. Also, the immigration officer made no inquiries on the language abilities of the children and the impact on their schooling. The applicant submitted that in light of Love v. Canada (Minister of Citizenship and Immigration), 2004 FC 1569, the immigration officer was required to make a more thorough analysis of the best interests of the children.
[17] The applicant submitted that it was incumbent on the immigration officer to seek and obtain better evidence concerning the interests of the children, if she had insufficient evidence before her (see Cheema (Litigation Guardian) v. Canada(Minister of Citizenship and Immigration), 2002 FCT 638). The applicant submitted that the immigration officer should have made inquiries as to how the children would be cared for in Canada when their father is at work, or the impact on the children's schooling without their mother.
Respondent's Submissions
[18] The respondent submitted that there is no prima facie presumption that the children's best interests should prevail subject only to the gravest countervailing grounds (see Legault v. Canada(Minister of Citizenship and Immigration), 2002 FCA 125 at paragraph 13). The fact that the applicant's Canadian children might be better off in Canada in terms of general comfort and future opportunities cannot be conclusive in an H & C decision (see Vasquez v. Canada (Minister of Citizenship and Immigration), 2005 FC 91 at paragraphs 41 to 43).
[19] The respondent submitted that the decision of Love, relied on by the applicant, was affected in part by the fact that if the applicant were removed from Canada, his five children and their mother would have to go on welfare due to the Canadian citizen spouse's inability to support herself and her five children alone. The respondent submitted that that is not the case here. It was submitted that there is evidence to suggest that the Canadian citizen spouse, who is the primary wage earner in the family, has a close relationship with his daughters and will also have the benefit of the assistance of his mother and his grandfather who reside with the family.
[20] The respondent submitted that the immigration officer provided the appropriate level of analysis concerning the interests of the children in proportion to the evidence submitted by the applicant (see Owusu v. Canada(Minister of Citizenship and Immigration), 2004 FCA 38). The applicant stated that her young daughters would be devastated and broken hearted if she had to leave Canada to apply for a permanent resident visa. She also stated that her children were attached to their father and that they would be very hurt emotionally if they were to be separated from their father. The respondent submitted that the immigration officer understood the difficulties that confronted the applicant and addressed the situation reasonably in her reasons for the decision. The respondent submitted that if there were more issues to be considered when assessing the interests of the children, the applicant did not provide the immigration officer with sufficient evidence of that to warrant the officer engaging in a more in-depth analysis.
Relevant Statutory Provisions
[21] An H & C application is permitted under section 25 of IRPA, which provides:
| 25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
(2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province's selection criteria applicable to that foreign national.
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25. (1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger - compte tenu de l'intérêt supérieur de l'enfant directement touché - ou l'intérêt public le justifient.
(2) Le statut ne peut toutefois être octroyé à l'étranger visé au paragraphe 9(1) qui ne répond pas aux critères de sélection de la province en cause qui lui sont applicables.
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Analysis and Decision
[22] The appropriate standard of review for a decision of an immigration officer on an H & C application is reasonableness simpliciter (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 857 to 858).
[23] Issue 1
Was the decision of the immigration officer unreasonable as it failed to be alive, alert, and attentive to the best interests of the applicant's children?
The immigration officer's decision with respect to the best interests of the two Canadian born children reads as follows:
Having considered her actions in period between her arrival to Canadain 1994 and her arrest in 2003, she has demonstrated her lack of respect and regard to our immigration laws. She has not provided sufficient evidence that her actions were justified and were due to reasons beyond her control.
During the time the applicant has been in Canada she married Hector Chamale who is a citizen of Canada. Her husband has not provided sufficient evidence of his willingness to sponsor. I note that the applicant does not have valid temporary resident status in Canada and is ineligible to be sponsored as a member of the family class. Therefore, I have given the absence of the sponsorship little weight.
They now have two daughters, Thelma and Damaris. Their daughters are aged five and three, respectively. The applicant has a difficult choice ahead of her. She will either have to leave her children behind or take them with her. I will acknowledge that this will be a difficult decision for the applicant. I also acknowledge that the children may face difficult times in being away from either parent. I am not satisfied that their best interests will be jeopardized. They will have the love, care and support of the custodial parent. That parent can ensure that the children will be well cared for and offer any support that is necessary to get through any difficulties the child may face.
I cannot ignore the fact that the applicant built her new life during a time that she had no status in Canada. She remained in Canada long after the period authorized for her stay. She has created the situation in which she now finds herself. I further note that she has two other daughters remaining in Guatemala. Today, they are 12 and 13. When the applicant left Guatemala, they were two and three. They were no older than the Canadian born children are today; yet the applicant was able to leave them in Guatemala. I note that she has been separated from them for the past ten years. Undoubtedly the children in Guatemala are just as deserving of having the physical presence of their mother. I am not satisfied that she has demonstrated that the hardship faced by her Canadian born children would be any greater than the children who have been without their mother for the past ten years.
[24] There was evidence before the immigration officer that the applicant had been detained for three days by the immigration authorities. During this time, the applicant's children refused to eat and were crying all the time. The applicant's husband, who is the children's father, was present. The immigration officer did not consider, in her reasons for the decision, the reaction of the children to their mother's three day immigration detention.
[25] There was also evidence that the oldest child was in kindergarten and had many friends there. The immigration officer was aware that the applicant was the primary caregiver who stated at home to care for the children while her husband worked and provided the financial support for the family. The immigration officer was also aware that the children's language is English.
[26] The immigration officer's assessment does not address how the best interests of the applicant's five and three year old children would not be jeopardized if their mother were to be removed to Guatemala, other than that the children would have the love, support and care of the custodial parent. If the father were to be the custodial parent, the immigration officer did not consider who would care for the children when the father was at work.
[27] The immigration officer also did not address the situation of the two children should the applicant take them with her to Guatemala. For example, they would be going to a country where the language was not English. The oldest child would be taken out of kindergarten.
[28] I agree with the respondent that the best interests of the children do not always trump other factors. However, in this case, the decision does not show that a balancing with other factors was carried out.
[29] In light of the above, I am not persuaded that the immigration officer made an adequate assessment of the best interests of the children.
[30] Issue 2
Did the immigration officer err in failing to request and elicit additional information concerning the best interests of the applicant's children?
I am of the opinion that the immigration officer was under a duty to obtain further information concerning the best interests of the Canadian born children if the officer believed the information presented by the applicant to be insufficient to assess the best interests of the children.
[31] In Bassan v. Canada(Minister of Citizenship and Immigration) 2001 FCT 742, Justice McKeown stated at paragraph 6:
An H and C officer must make further inquiries when a Canadian born child is involved in order to show that he or she has been attentive and sensitive to the importance of the rights of the child, the child's best interests and the hardship that may be caused to the child by a negative decision. As stated by Madam Justice L'Heureux-Dubé, such further inquiry, "is essential for an H and C decision to be made in a reasonable manner".
[32] The present case is not the type of situation described by Justice Evans in Owusu, supra, at paragraph 9:
The half-sentence on page four of the seven-page letter, quoted above in paragraph 6, said only that Mr. Owusu would be unable to support his family financially if he was deported was too oblique, cursory and obscure to impose a positive obligation on the officer to inquire further about the best interests of the children. The letter did not say that Mr. Owusu had been supporting his children from the money he earned while in Canada, and that they were financially dependent upon him and would be deprived of that support if he was deported. Nor was there any proof before the officer of any of these facts.
[33] I am satisfied that the evidence before the immigration officer in this case was sufficient to require the officer to make any further inquiries necessary to adequately address the best interests of the Canadian born children.
[34] The application for judicial review is therefore allowed and the matter is remitted for redetermination by a different immigration officer.
[35] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
[36] IT IS ORDERED that the application for judicial review is allowed and the matter is remitted for re-determination by a different immigration officer.
"John A. O'Keefe"
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